German court ruling brings into focus the EU rules for intermediary liability

Disclaimer: Google, which is mentioned in this blog post, is a member of OFE

The Higher Regional Court in Hamburg in Germany revisited the topic of liability of online intermediaries in its ruling of 1 July, opposing Google YouTube and GEMA, the German collecting society. The official press release is available only in German and it follows the preliminary ruling of the European Court of Justice from October 2014 in the BestWater International case (C-348/13). The judgment of the German Court did not only look at the liability arising from the obligation of taking the necessary measures to remove illegal content once notified, but also at the financial liability which GEMA argues would arise from considering YouTube not a passive host provider, but an active digital music service provider.

This comes at a particularly timely moment, as the European institutions are currently considering a possible revision of intermediary liability. The European Parliament’s own initiative report on the implementation of the InfoSoc Directive adopted on 9 July, suggests “a review of the liability of service providers and intermediaries in order to clarify their legal status and liability with regard to copyright […]”. The Commission, in its Digital Single Market Communication, underlines that inefficiency of actions against illegal content, and also the differences in national practices for enforcing actions against illegal content. For these reasons, the Commission, as part of its DSM Strategy, intends to launch a comprehensive assessment of the role of platforms and of online intermediaries. While doing so, the Commission should take into account that the latest public consultation on the e-commerce Directive indicated that the majority of stakeholders were not in favour of reopening this part of the Directive, dealing with intermediary liability.

While considering taking actions on intermediary liability, the decision-makers have to clearly define the problems that need to be fixed and make sure that they offer proportionate and adequate responses depending on the particular circumstance which is addressed. The concept of intermediary liability covers not only the obligation of removing illegal content from host providers’ platforms when notified – which falls in the realm of civil infringements, but also more serious criminal offenses linked to distribution of unlawful content, which are to be dealt in an entirely separate manner. Only if online platforms enjoy protection from undue liability for third party content, can the online environment enable digital growth and innovation. The German court confirmed, for example, that the content ID programme used by YouTube was a sufficiently appropriate action for tackling illegal content.

While looking at the intermediary liability in the DSM Strategy, the Commission needs to strike the right balance between restricting access to illegal content and protecting fundamental rights. For example, when the removal of copyrighted content is done only based on notifications, without judicial determination of the legality of the content, the intermediaries can end up removing legitimate content by fear of being held liable.

If EU rules on intermediary liability are to be reviewed, the principle of evidence-based policy making should be respected and make sure that the online rights and Internet economy are not negatively impacted.